Law professors differ on affirmative action

STANFORD -- Two law professors wrestled with the issue of affirmative
action in what they termed a ³discussion² rather than a
³debate² Thursday, Oct. 20 at Stanford Law School.

Taking a less-is-better position on affirmative action was Richard
Epstein, John Olin Professor of Law at the University of Chicago. Opposing
him and stressing the academic and societal benefits of affirmative action
was Paul Brest, Richard E. Lang Professor of Law and dean of the Stanford Law
School.

The event was sponsored by the Stanford chapter of the Federalist Society
for Law and Public Policy Studies, which describes itself as ³a group of
conservatives and libertarians interested in the state of the legal
order.² An overflow audience, made up primarily of law students, filled
the Moot Courtroom, which seats 140.

The discussion focused on law schools, and Epstein said he takes ³a
very dim and hostile view of any effort by the American Association of Law
Schools (AALS), or other accreditation institutions, to say that the only way
you will be accredited is to have an affirmative action program which meets
the requirements of the association.² Brest agreed that decisions
regarding affirmative action should be made ³at the local level, and not
by courts or accrediting agencies.²

Epstein said he disagreed with doomsayers who believe that if
accreditation standards imposed by the AALS were removed, or Title 7 of the
Civil Rights Act were repealed, ³institutions would go back to the
admissions and hiring practices that existed in 1952 or earlier. I detect a
strong sentiment in favor of some degree of affirmative action and predict
that it will continue.²

But, Epstein said, ³while I think there would still be affirmative
action, perhaps more here [at Stanford] than at the University of Chicago, I
think there would be somewhat less. But I think the question of more or less
is not the right question. The right question is which of these two systems
is going to yield more desirable results.²

Epstein said he thinks affirmative action is a matter of trade-offs. While
he believes that traditional admissions criteria, such as grades and
standardized test scores, are important, they may not be the only things that
are important, he said. Institutions would be free to balance and weigh a
variety of factors in admissions, he said.

³What I think is wrong about the affirmative action debate, as it
sometimes takes place,² Epstein said, ³is the argument that there are
no trade-offs at all.²

Almost 15 years ago, Stanford Law School decided, Brest said, to stop
using numbers as the exclusive factor in admissions, ³not just with
respect to so-called targeted racial minorities, but with respect to all
students.²

³We¹re always making trade-offs,² Brest said, ³but if
we¹re talking about trade-offs in affirmative action, Professor Epstein
has missed what I regard as a significant benefit of affirmative action.²
Diversity, Brest said, expands the educational experience for everyone.

While there is no such thing, Brest emphasized, as an African American
point of view or a Latino point of view, ³people who have different
backgrounds - race and ethnicity not being the only way in which our
backgrounds differ - bring different experiences to the classroom.²

Since a great deal of what goes on in a law school class involves social
policy that affects people from different groups in different ways, Brest
said, diversity enriches the classroom discussion. ³My sense is that
discourse has been enriched enormously in the law reviews and in the
classroom by virtue of people bringing points of view to bear that otherwise
would not be there,² Brest said.

³We made a trade-off in the admission of every student and the hiring
of every faculty member,² Brest added, ³and it¹s a trade-off of
What can you bring to this enterprise?¹ We live in a society in
which not just work experience or test scores or the college you attended,
but race and ethnicity are part of what you bring to this enterprise.²

The real question, Epstein responded, ³is not whether we have
trade-offs, but what is the level of the trade in question.² It is wrong,
he said, ³to treat the affirmative action preferences or corrections as
though they were the same order of magnitude as geographical preferences or
alumni preferences, because they¹re not. You¹re talking about a much
bigger accommodation being made to race.²

On the question of diversity enhancing the classroom experience, Epstein
said that he thinks that in many cases ³intellectual diversity does not
depend on the obvious kind of social indicators.² A homogenous community,
such as the upper-middle- class predominantly Jewish high school he attended
in Great Neck, N.Y., Epstein said, can produce people with very different
points of view.

During the question period, Brest illustrated his point about the
importance of diversity by citing Barbara Babcock, the first tenured woman on
the Stanford Law School faculty. Brest, who had been at Stanford for three
years before Babcock¹s arrival, said that with Babcock¹s presence,
³the nature of the discourse in faculty meetings changed in a significant
way. It¹s not that we had been telling locker room jokes, but
people¹s consciousness of women students and women candidates for the
faculty was changed merely by the presence of one woman on the faculty.²

Babcock, who was in the audience, said that she was on an all-male faculty
for her first five years at Stanford, and she perceived that real changes in
faculty conversation did not come until very recent years. (Stanford Law
School now has 10 tenured or tenure-track women on its faculty.)

In turn, Babcock asked Epstein if ³you feel a lack with no tenured
African American [faculty] and for many years no women of any color.²
(According to the University of Chicago News Office, its law school now has
one tenured and one tenure-track African American on the faculty and four
women, either tenured or tenure- track.)

Epstein responded that the female candidates for faculty positions are, on
average, not equal to the male candidates. ³How much of a compromise does
one want to make?² he asked. ³That¹s the issue that has divided
people on the faculty, but if you were to check the things that count - the
rates of publication that will be required to make it into certain levels -
one would see that not only has there been no discrimination but some due
allowances made.

³We want to get someone who is in the top one-tenth of one percent, in
some sense, of academic power, and that¹s a very high standard to
meet,² Epstein said.

Babcock asked Epstein if he felt a personal lack at not having women or
minorities ³in your councils or at your bag lunches.²

³I think a Chicago lunch is still the ultimate intellectual
experience,² Epstein replied. ³It¹s a roundtable where you put
your head under a guillotine and wait for someone to drop the blade. I always
want to find someone who¹s about to destroy me.²

Another questioner wanted to know if Epstein would accept the result if
affirmative action were abolished and faculties went back to all-white,
all-male.

³Sure, but I¹d be utterly stunned because the only way it could
happen is if large numbers of people presently in positions of power at these
institutions decided to commit a form of institutional hari-kari,²
Epstein said. ³I know my views within the academy are, to put it mildly,
in a fairly distinct minority, and I can¹t believe that, if you remove
the pressures I¹m talking about, that suddenly I would be transformed
into a powerful majority. I don¹t think people who are in favor of
affirmative action are doing it as a strategy. I think they believe it.²

Summing up his views, Epstein said, ³Affirmative action has some
opportunities and some costs. I certainly believe that the level of zero
affirmative action is an institutional mistake of colossal proportions, but
I¹m basically in favor of the Mies van der Rohe position of Less is
more.¹ But I realize that if I say that, I¹m driven back to zero, so
what I have to do is try to find some place in which I can put a handhold on
the slippery slope.²

Brest concluded by saying, ³I only wish we had Richard Epstein on the
Stanford faculty to contribute to our intellectual diversity.²

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